Shearer v. Keenan, 2017 ONSC 7171

COURT FILE NO.: CV-16-558414

DATE: 20171130

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: VIOLET ARLENE SHEARER, Plaintiff

AND:

NANCY KEENAN, EDITA TAHIROVIC and TORONTO DISTRICT SCHOOL BOARD, Defendants

BEFORE: Cavanagh J.

COUNSEL: Violet A. Shearer, In Person

Stephen Birman, for the Defendants

HEARD: November 29, 2017

ENDORSEMENT

Introduction

1The Plaintiff commenced this action for libel in respect of statements in an email sent by representatives of her employer, the Toronto District School Board (“TDSB”), to members of the community of the school at which the Plaintiff works as a music teacher. The Defendants move pursuant to rule 21.01(3)(a) of the Rules of Civil Procedure for an order dismissing the action on the ground that this Court has no jurisdiction over the subject matter of the action.

2The Plaintiff is employed by the TDSB as a music teacher at the High Park Alternative Public School (the “School”). The Defendant Nancy Keenan is employed by TDSB as principal of the School. The Defendant Edita Tahirovic is employed by TDSB as vice-principal of the School. Ms. Keenan and Ms. Tahirovic were the authors of the email in question.

3The Defendants submit that the subject matter of the action is bound by the factual matrix of the employment relationship and collective agreement between the Plaintiff (as a teacher employed by the TDSB and as a member of the Elementary Teachers’ Federation of Ontario (“ETFO”) which is the sole bargaining unit for all elementary teachers employed by the TDSB) and the TDSB, and that this Court does not have jurisdiction over the subject matter of the collective agreement.

4The Plaintiff submits that her dispute with the Defendants, in its essential character, does not arise from the interpretation, application, administration or violation of the collective agreement and, for this reason, this Court has jurisdiction over the subject matter of the action.

5For the following reasons, I have concluded that this Court does have jurisdiction over the subject matter of the action, and that the Defendants’ motion should be dismissed.

Factual Background

6On May 4, 2016 a spring concert was held at the School at which students of the School performed, and parents and family members of the students attended as the audience. The concert performance was produced by the Plaintiff, and she chose the musical content of the program. The Plaintiff acted as the master of ceremonies at the concert performance, and she acted as sole conductor of the student choirs which performed. As the sole music teacher at the School, the Plaintiff was the only person who taught the various songs to the students, as part of the curriculum instruction in their music classes at the School.

7The Plaintiff’s evidence is that the spring concert was not part of her required employment duties in her capacity as an educator/employee of the TDSB, and the concert was a voluntary, unpaid, extracurricular activity that she undertook. The spring concert took place outside of the Plaintiff’s mandated hours of employment, and took place outside of regular school hours for the students and staff at the School.

8Included in the program for the spring concert was the song “Land of the Silver Birch”, whose lyrics are attributed to well-known poet, Pauline Johnson. The Plaintiff performed the song “Land of the Silver Birch” at the spring concert on May 4, 2016.

9On May 18, 2016, while the Plaintiff was away from her employment on medical leave, Ms. Keenan and Ms. Tahirovic sent an email addressed to the High Park Alternative School Community. According to the Plaintiff, this community consisted of the parents/guardians of the students at the School and the staff of the School.

10In the May 18, 2016 email, Ms. Keenan and Ms. Tahirovic included the following statement:

We would like to apologize for having students perform ‘Land of the Silver Birch’ by Pauline Johnson, in the HPAS concert on May 4^th. It has been brought to our attention that this song is inappropriate and is racist.

11In the May 18, 2016 email, Ms. Keenan and Ms. Tahirovic also thanked the parents who brought this to their attention and noted that together with staff they were looking at a plan to ensure professional development for staff as well as a parent presentation and a committee to look at creating a more inclusive environment that enriches the education of all students by promoting the infusion of Aboriginal perspectives.

12The Plaintiff commenced an action for damages for libel and claims that the May 18, 2016 email is defamatory of her.

13The Plaintiff’s evidence is that the Defendants have not taken any steps or actions against her, in relation to the performance of the song, which could be considered as relating to her employment or her relationship with her employer under the collective agreement. There has been no communication to the Plaintiff which could be considered disciplinary in nature. There has been no effect on her pay or working hours. She has not been suspended, and there have been no warnings critical of her work.

Analysis

14The issue on this motion is whether this Court has jurisdiction over the subject matter of the Plaintiff’s claim as advanced in her Statement of Claim.

15Section 48 (1) of the Ontario Labour Relations Act, S.O. 1995 Chapter 1, provides:

48. (1) Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.

16The Defendants rely upon Part B of the collective agreement between TDSB and ETFO which sets out a mandatory procedure for resolving disputes relating to the interpretation, application, administration or any alleged violation of the collective agreement, including any question as to whether a matter is arbitrable.

17The Defendants also rely upon paragraph L-A.1.1 of the collective agreement that provides, under the heading “Purpose of this Agreement”, that “[i]t is in the interest of the parties to this Agreement to maintain mutually satisfactory relationships by setting forth certain terms and conditions of employment and to provide a procedure for the equitable settlement of grievances”.

18In Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 S.C.R. 929 the Supreme Court of Canada addressed the question of when the Courts’ jurisdiction over civil actions is ousted by the Labour Relations Act. McLachlin J. (as she then was) wrote at para. 50 that the task of the judge or arbitrator determining the appropriate forum for the proceeding centres on whether the dispute or difference between the parties arises out of the collective agreement. If so, the claimant must proceed by arbitration and the courts have no power to entertain an action in respect of that dispute. Two elements must be considered: the dispute and the ambit of the collective agreement.

19McLachlin J., at paras. 52-54 of Weber, described the approach to be taken by the decision-maker when undertaking the task of determining the appropriate forum for the proceeding:

In considering the dispute, the decision-maker must attempt to define its “essential character”, to use the phrase of La Forest J.A. in Energy & Chemical Workers Union, Local 691 v. Irving Oil Ltd. (1983), 1983 3072 (NB CA), 148 D.L.R. (3d) 398 (N.B.C.A.). The fact that the parties are employer and employee may not be determinative. Similarly the place of the conduct giving rise to the dispute may not be conclusive; matters arising from the collective agreement may occur off the workplace and conversely, not everything that happens on the workplace may arise from the collective agreement: Energy & Chemical Workers Union, supra, per La Forest J.A. ... In the majority of cases the nature of the dispute will be clear; either it had to do with the collective agreement or it did not. Some cases, however, may be less than obvious. The question in each case is whether the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement.

Because the nature of the dispute and the ambit of the collective agreement will vary from case to case, it is impossible to categorize the classes of case that will fall within the exclusive jurisdiction of the arbitrator. ...

This approach does not preclude all actions in the courts between employer and employee. Only disputes which expressly or inferentially arise out of the collective agreement are foreclosed to the courts: [citations omitted].

20The Defendants submit that the Plaintiff’s claim against the Defendants is in respect of matters that arose from her employment with the TDSB, her employee-employer relationship with the school board employees, and conduct occurring in the course of her employment with the TDSB. Therefore, the Defendants submit, her claim properly falls under the jurisdiction of the collective agreement.

21The Plaintiff submits that the essential character of her dispute with the Defendants is a claim for libel, and that the subject matter of the allegedly libelous communication involves a performance at an extra-curricular, voluntary, unpaid concert that was held outside of her regular hours of employment and that did not occur within the course of her employment.

22The fact that the Plaintiff and the TDSB are in an employment relationship is not enough to characterize the dispute as one that arises from the interpretation, application, administration or violation of the collective agreement. In Piko v. Hudson’s Bay Company (1998), 1998 6874 (ON CA), 41 O.R. (3d) 729 (C.A.), Piko sued her employer for malicious prosecution. Piko had been charged with fraud because of an incident that took place at the workplace. After the Crown withdrew the criminal charge, Piko brought her civil action.

23Laskin J.A. concluded that Piko’s claim that she was unjustly discharged had to be arbitrated, but that her claim based upon malicious prosecution does not arise under the collective agreement and is not foreclosed by the principles in Weber:

But her claim that the Bay maliciously prosecuted her in the criminal courts lies outside the scope of the collective agreement. The Bay itself went outside the collective bargaining regime when it resorted to the criminal process. Once it took its dispute with Piko to the criminal courts, the dispute was no longer just a labour relations dispute. Having gone outside the collective bargaining regime, the Bay cannot turn around and take refuge in the collective agreement when it is sued for maliciously instituting criminal proceedings against Piko.

The difference between this case and cases such as Ruscetta and Dwyer is that although the dispute between the Bay and Piko arises out of the employment relationship, it does not arise under the collective agreement. A dispute centred on an employer’s instigation of criminal proceedings against an employee, even for a workplace wrong, is not a dispute which in its essential character arises from the interpretation, application, administration or violation of the collective agreement.

24In this case, the email by which the allegedly libelous statements were transmitted related to an event, the spring concert, which was an extra-curricular activity, and the Plaintiff’s involvement in the spring concert was not part of her employment duties. Although the conduct that gives rise to the Plaintiff’s claim for libel is of an entirely different nature than the conduct of the employer in Piko, I regard the reasoning in the Court of Appeal in Piko as applying to the facts of this case.

25The Defendants cite several cases where a teacher commenced a civil claim in relation to a matter arising from his or her employment, and they submit that courts in these cases have held that teachers are bound by the regime set up under the collective agreement and cannot circumvent it by claiming damages for matters such as defamation. I address the cases cited by the Defendants.

26In Heald v. Toronto District School Board et al. 2004 27405, in addition to his claim for defamation, the plaintiff claimed that the defendants commenced a campaign of harassment and reprisals against him which ultimately caused him to have a mental breakdown and leave his teaching position. The trial judge held that the essential nature of the issues between the plaintiff and the defendant stem from the employer-employee relationship and that the plaintiff’s remedy is exclusively through the collective bargaining regime. In the case at bar, unlike in Heald, the Plaintiff’s claim involves a communication in respect of an extra-curricular activity, and no action taken within the employer-employee relationship.

27In Venneri v. Bascom (1996), 1996 7972 (ON SC), 28 O.R. (3d) 281, another case cited by the Defendants, the plaintiff was dismissed and grieved the dismissal. The plaintiff sued the employer for defamation based upon a letter that was sent to the plaintiff in the context of the employment relationship and that was placed on her employment record as a form of discipline. In the case at bar, in contrast, the Plaintiff’s employer has not taken any disciplinary proceedings against her, and the allegedly libelous email does not relate to an event in which the Plaintiff participated as part of her employment relationship with TDSB.

28In McIntyre v. Connolly (2008) 12496, the plaintiff’s employment was terminated and he grieved his dismissal under the collective agreement. At the same time, the plaintiff commenced a civil action for defamation. There was a settlement of the grievance and the employer filed a grievance alleging that the plaintiff failed to implement the settlement. The motion judge held that arbitrator had ruled that the parties had entered into a settlement which determined their rights, and that claims of defamation by a teacher relating to negative performance reviews or problems in the workplace are properly matters falling within the collective agreement. In the case at bar, the essential character of the dispute is not a problem in the workplace.

29In my view, therefore, the cases cited by the Defendants can be distinguished on their facts because in those cases, there was some form of employment-related action taken by the employer, some allegation concerning or involvement of the workplace, or some conduct mandated by the collective agreement.

30The Defendants also rely upon evidence of an email sent by the plaintiff to Ms. Keenan and Ms. Tahirovic, with copies to other persons, on June 16, 2016. This email makes reference to the Notice of Libel and a “Notice of Action and Limitation of Action under the Libel and Slander Act”. The email encourages the recipients to set up a meeting upon the Plaintiff’s return to work. In the email, the Plaintiff wrote:

Please note that Jamie Thon of ETT will not be involved in such a meeting at this time. However, I have contacted RTFO’s Professional Relations Services, who have given me their full assurance that the union can be involved should be required to as per the terms or enforcement of the collective agreement.

31The Defendants rely upon this statement as evidence to support their submission that the Plaintiff was aware of and intended to avail herself of the rights and remedies available under the collective agreement in respect of the matters for which the Plaintiff now complains in the Statement of Claim.

32I do not regard this email as one that supports the Defendants’ position on this motion. The email specifically refers to the Notice of Libel, and the reference to the possibility of the union becoming involved was expressly qualified by the statement “should it be required to as per the terms or enforcement of the collective agreement.” The Plaintiff has not be disciplined, and no action has been taken by her employer in respect of the spring concert in relation to the Plaintiff’s employment.

33In my view, the fact that the Plaintiff’s claim for damages for the allegedly libelous statements is made in the context of the spring concert, an extra-curricular, unpaid and volunteer activity of the Plaintiff, in respect of which she has had no disciplinary or other employment related consequences, makes the Plaintiff’s dispute with the Defendants, in its essential character, one that does not arise from the interpretation, application, administration or alleged violation of the collective agreement.

34For these reasons, this Court has jurisdiction over the subject matter of the action.

Disposition

35The Defendants’ motion is dismissed.

36The Plaintiff represented herself on this motion, and seeks an order of costs against the Defendants in the amount of $7,879.08 based upon 94 hours expended at a rate of $83.82.

37In Ontario, a self-represented litigant is not entitled to compensatory costs in the absence of evidence showing that he or she has foregone the opportunity to earn income in the course of preparation involved for the litigation: Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330 (Ont. C.A.) at paras. 25-26; Mustang Investigations Inc. v. Ironside, 2010 ONSC 3444 (Div. Ct.) at paras. 23 and 27; Beard Winter LLP v. Shekhdar, 2015 ONSC 4517 (Div. Ct.) at para. 52.

38Although the Plaintiff submitted at the hearing that she had foregone the opportunity to earn income, there was no evidence presented in this regard. I am bound by the decisions that I have cited and, therefore, I decline to award costs of this motion to the Plaintiff.

Cavanagh J.